EFFECTIVE DATE: 1 October, 2015
On 1 October, 2015, we published our Terms of Service. Your continued use of RealBlocks means you agree to this document, so please take a few minutes to read and understand it. These RealBlocks Terms of Service (the “Terms”) are a legal contract between you and Envexergy, Inc. (“RealBlocks”, “we” or “us”). These Terms explain how you are permitted to use the RealBlocks mobile application and services, as well as the RealBlocks website located at https://www.realblocks.com
(the “Site”) and any content therein (collectively, the “Services”). Unless otherwise specified, all references to the Services include the services available through the RealBlocks mobile application (the “App”) and the Site, as well as any software that RealBlocks provides to you that allows you to access the Services from a mobile device and any other Materials (as defined below). By using the Services, you are agreeing to all of the Terms; if you do not agree with any of these Terms, do not access or otherwise use the Services. You may download and/or print a copy of these Terms for you records at: https://www.realblocks.com
Important Note: These Terms contain a dispute resolution and arbitration provision, including class action waiver, which affects your rights under these Terms and with respect to any dispute you may have with RealBlocks. You may opt out of the binding individual arbitration and class action waiver as provided below.
RealBlocks may make changes to the Services at any time. RealBlocks can change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on the App or the Site, by posting a notice on the Services or by notifying you via the App. By using the Services after RealBlocks has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using Services.
The Services may not be available in all locations, and we may block access to the Services from certain locations based on your device’s geolocation information. We may add to or remove the areas in which the Services are not available at any time, without notice to you. By using, you represent, acknowledge and agree that you are at least 18 years of age. If you are not at least 18 years old, you may not use the Services at any time or in any manner or submit any information to the App, the Site or any part of the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity. We may, without notice and in our sole discretion, terminate your right to use the Services, or any portion thereof, and block or prevent your future access to and use of the Services or any portion thereof.
RealBlocks provides content through the Services that is copyrighted and/or trademarked work of RealBlocks or RealBlocks’s third-party licensors and suppliers or other users of the Services (collectively, the “Materials”). Materials may include logos, text graphics, video, images, photos, software and other content. Subject to these Terms, RealBlocks hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to use and to display the Materials and to use the Services solely for your personal, non-commercial use. Except for the foregoing license, you have no other rights in the Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Services or Materials in any manner. You may use the App for your personal, non-commercial use. You may not: (i) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third-party or use the App to provide time sharing or similar services for any third-party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App. You acknowledge that RealBlocks may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. Standard carrier data charges may apply to your use of the App. Except for the limited rights expressly licensed in these Terms, RealBlocks and its third-party licensors or suppliers retain all right, title, and interest in and to the Services. The following additional terms and conditions apply with respect to any App that RealBlocks provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and RealBlocks only, and not with Apple, Inc. (“Apple”).
- Your use of RealBlocks’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- RealBlocks, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that RealBlocks, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App.
- You agree that RealBlocks, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of RealBlocks’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
- If you breach any of these Terms, the above license will terminate automatically and you must immediately stop using the Services and destroy any downloaded or printed Materials.
We may ask for your mobile number in order to verify your account when you try to post content or if we suspect improper activity on your account. Please note that your carrier’s text messaging and data fees apply for mobile number verification.
- When using the App and/or any other part of the Services, you agree not to: Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially or ethnically offensive language.
- Discuss or incite illegal activity.
- Post anything that exploits children or minors (including pornography that depicts minors) or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Services.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on the Services.
- Post any image or language that is obscene or offensive, threatening or demeaning to any individual or group.
- Post any classified information.
- Post any material non-public information related to securities or brokerage transactions or activities including sales and trading.
- Post non-public information related to corporate activities.
- Post anything in breach of any confidentiality obligations or agreements that a user may have entered into.
- Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not exhaustive or exclusive. RealBlocks reserves the right to (a) terminate access to your account and your ability to post to the Services (or otherwise use the Services) and/or (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that RealBlocks determines is inappropriate or disruptive to the Services or to any other user of the Services. RealBlocks may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at RealBlocks’s discretion, RealBlocks will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Services or on the Internet. Unauthorized use of any Materials or Third-Party Content contained in the Services may violate certain laws and regulations. You agree to indemnify and hold RealBlocks and its officers, directors, employees, consultants, affiliates, agents, licensors, and business partners (collectively, the “Indemnified Entities”) harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) RealBlocks or any other Indemnified Entity suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Services or the use of the Services by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
Disclaimer of Warranties
Your use of the Services is at your own risk. The Materials may not have been verified or authenticated in whole or in part by RealBlocks, and they may include inaccuracies or typographical or other errors. RealBlocks does not warrant the accuracy of timeliness of the Materials contained on the Services. RealBlocks has no liability for any loss of, or errors or omissions in Submissions, or for any errors or omissions in the Materials or any other portion of the Services, whether provided by RealBlocks, our licensors or suppliers or other users. REALBLOCKS, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, MATERIALS AND ANY OTHER PORTION OF THE SERVICES OR ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, REALBLOCKS DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability
IN NO EVENT WILL REALBLOCKS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF REALBLOCKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, REALBLOCKS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICES. YOUR ONLY REMEDY AGAINST REALBLOCKS FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. IF, NOTWITHSTANDING THESE TERMS, REALBLOCKS IS FOUND LIABLE TO YOU FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES, REALBLOCK’S LIABILITY SHALL IN NO EVENT EXCEED ONE U.S. DOLLAR ($1.00) IN THE AGGREGATE. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Local Laws; Export Control
RealBlocks controls and operates the Services from its headquarters in the United States and the Services may not be appropriate or available for use in other locations. You are responsible for following applicable laws and regulations in your jurisdiction, including but not limited to laws and regulations regarding the transmission of technical data exported from the United States or the country in which you reside.
If you send or transmit any communications, comments, questions, suggestions, or related materials regarding RealBlocks or the Services, whether by email or otherwise (collectively, “Feedback”), such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and RealBlocks is free to use, without any attribution or compensation to you, any and all Feedback for any purpose whatsoever. You understand and agree that RealBlocks is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read the following provision (the “Provision”) carefully; it requires you to arbitrate disputes with RealBlocks and otherwise limits the ways you can seek remedies from us. Many customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at https://www.realblocks.com. We ask that you please contact us if you have any concerns. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and RealBlocks. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. This provision provides that all Disputes between you and RealBlocks shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). For the purpose of this Provision, “RealBlocks” means RealBlocks and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, contractors and agents. The term “Dispute” means any dispute, claim, or controversy between you and RealBlocks regarding any aspect of your relationship with RealBlocks, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as RealBlocks’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution For all Disputes, whether pursued in court or arbitration, you must first give RealBlocks an opportunity to resolve the Dispute. You must commence this process by mailing written notification to RealBlocks, 43 W 23rd St. 6th Floor New York, NY 10010. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If RealBlocks does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out Notwithstanding the above, you or RealBlocks may choose to pursue a Dispute in court and not by arbitration if (a) given the nature and amount of the Dispute, it may be initiated in small claims court; or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to RealBlocks, 43 W 23rd St. 6th Floor New York, NY 10010. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with RealBlocks through arbitration. Your decision to opt out of this Arbitration Provision will have no adverse effect on your relationship with RealBlocks. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures Arbitration Organization: If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or RealBlocks may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration Award: The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. Location of Arbitration: You or RealBlocks may initiate arbitration in either Fulton County, Georgia, or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, RealBlocks may transfer the arbitration to Fulton County, Georgia in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator. Payment of Arbitration Fees and Costs: RealBlocks will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with RealBlocks as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will not be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and RealBlocks specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver You understand and agree that by entering into this Agreement you and RealBlocks are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and RealBlocks might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided in this Provision, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation This Provision shall survive the termination of your service with RealBlocks or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if RealBlocks makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require RealBlocks to adhere to the language in this Provision if a dispute between us arises.
The Federal Arbitration Act, Georgia state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Services will be heard in the courts located in Fulton County, Georgia. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. RealBlocks’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and RealBlocks and supersede all prior or contemporaneous negotiations, discussions or agreements between you and RealBlocks about the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
RealBlocks respects the intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf. RealBlocks will respond expeditiously to claims of copyright infringement committed using the RealBlocks site or app that are reported to RealBlocks Designated Copyright Agent, identified in the sample notice below. If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to the RealBlocks Designated Copyright Agent. Upon receipt of the Notice as described below, RealBlocks will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the site or app. DMCA Notice of Alleged Infringement ("Notice"). If you believe that your intellectual property appears on the Services in violation of your copyright, please provide RealBlocks’s designated agent the following information: A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Identification of the work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Services, and information reasonably sufficient to permit RealBlocks to locate the material. Information reasonably sufficient to permit RealBlocks to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property owner, its agent, or the law. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. RealBlocks’s agent for notice of claims of intellectual property infringement on the Services can be reached as follows: RealBlocks Attn: Copyright Agent firstname.lastname@example.org 43 W 23rd St 6th Floor New York, NY 10010 We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to RealBlocks designated agent that includes all of the following information: Your physical or electronic signature; Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled; A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification; and Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which RealBlocks may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
If you have any questions about these Terms or otherwise need to contact RealBlocks for any reason, you can reach us at https://www.realblocks.com